Monday, November 15, 2010

What's Wrong With Creative Commons

I think that this is the most significant statement from the discussion paper: “a recently completed research project, the African Copyright and Access to Knowledge (ACA2K) project (www.aca2k.org), found that access to learning materials in the eight African study countries is chiefly obtained by way of copyright infringement.”

It brings to mind the years I spent sharing an office with a fellow PhD candidate at the University of Alberta. Guangwei was from China – Shanghai, to be specific. He brought with him his textbooks, on thin paper and stapled together, all printed in China, all printed by way of copyright infringement. That was, and may still be, the best and only way to obtain educational texts in that country for the vast majority of students.

This is significant because, ultimately, the effect of Creative Commons licenses is to *preserve* copyright. The idea was that, instead of require that people infringe copyright in order to share, which was the de facto default prior to open licensing, a content owner could make a work available under less than all rights reserved. This allowed the person to preserve ownership, without placing the work in the public domain, and allowed for people to share without violating copyright. The idea is that people like Guangwei could use Creative Commons texts, rather than unauthorized copies.

Yet while it may be the case that Creative Commons or similar licenses would help people like Guangwei or people studying in today’s Africa, in our case the impact would be limited. In philosophy, the major texts are the works of philosophers, and after the first few years of university, texts will almost certainly be of contemporary origin. The works of contemporary greats such as Ludwig Wittgenstein, W.V.O. Quine, Hilary Putnam, and many others, cannot be found under Creative Commons licenses.

The upshot is that, by preserving copyright, open licensing may have actually made it harder to obtain such texts. Since the alternative of Creative Commons exists, there is much less pressure toward shorter copyright terms, and much less pressure for exceptions to copyright, particularly those involving fair dealing.

I think that, under such circumstances, it becomes pretty irrelevant to the user whether the content is copyright under Creative Commons or under all rights reserved. If the texts are required, and if there exists no legal means of obtaining a certain subset of the texts, then there is no point distinguishing whether or not the text is openly licensed. At some point, a license will have to be violated, and once that point is reached, there’s no reason to verify licensing.

The trouble with Creative Commons, and with copyright in general, is that the rights are focused solely on the needs and interests of the copyright owner, and is silent regarding the situation of the user. Even the common conditions for exemption under fair dealing (that the use is non-commercial, that it is educational, that it is transformative, etc.) there is no reference to the situation of the user, beyond the specific terms of use of the material.

As we have seen in the case of prescription medicine, it becomes morally unsustainable to deny treatment on the grounds that the person (or in some cases, entire nations) cannot afford the royalty payments. Yet while the injustice is most evident in the case of medicine, it is no less unjust in the case of education. Why should the people of China, or of Africa, be denied access to writers such as Wittgenstein or Quine merely because they cannot afford royalties?

We tend to depict the case of copyright and Creative Commons as though the bulk of the materials is the common textbook, easily reproduced through collective effort, and perhaps the bulk of it is. But this fact should not distract us from identifying the fundamental injustice created by copyright law in the first place, that of the rich using an artificially created scarcity in order to entrench and extend their wealth, to the detriment of those who are poor.

Update: Gina Bennett adds, on the OER mailing list: "Here’s another quote for those who love this sort of thing: David Reinking, when asked in a forum once about the ethics of breaking copyright, replied: “In fact, I'd rather turn the question around 180 degrees: When is it ethically justifiable to deny people access to and dissemination of potentially useful information?” (More info here: http://www.nifl.gov/nifl-technology/2001/0457.html, & he also has a book chapter on the topic: Reinking, D. (1996). Reclaiming a scholarly ethic: Deconstructing "intellectual property" in a post-typographic world. In D. J. Leu, C. K. Kinzer, & K.A. Hinchman (Eds.), Literacies for the 21st Century: Research and practice (pp. 461-470). Forty fifth Yearbook of the National Reading Conference. Chicago, IL: National Reading Conference.)

We presented a paper at OpenEd10 that concords with your comments about Creative Commons preserving Copyright (we point out that it 'does not undermine the law of private property'). We also agree that 'Creative Commons further liberalises the market by putting greater power in the hands of producers (i.e. teachers or their institutions) to determine the level of freedom to grant the consumer (Kleiner 2006).'

http://www.universityofutopia.org/open-education

We argue that the mainstream OER movement is mistaking the freedom of things with the freedom of people and draw comparisons with recent discussions about 'commonism' in critical social theory: "With its focus on exchange rather than production, commonism not only replays the consumerist limits of OER, but also, ironically, is in danger of replicating the forms of social regulation it is attempting to avoid: Socialism."

In conclusion, we acknowledge that OER is a progressive movement, but that it would do better to focus on the role of labour (teaching and learning) in constituting value and asking "what should constitute the nature of wealth in a sustainable and progressive post capitalist society. That is the really open question."

"Since the alternative of Creative Commons exists, there is much less pressure toward shorter copyright terms, and much less pressure for exceptions to copyright, particularly those involving fair dealing."

It's not clear what your claim is. First you state that the effect of CC has been to "preserve" copyright. But then you follow up your complaint regarding how (not if) copyright is carried out. There appears to be a contradiction there.

So what is it you want? No copyright or shorter terms? Shorter terms not only *isn't* the abolition of copyright, but is only one aspect of the power copyright law grants by default. You haven't really stated how CC has "preserved" copyright.

On a related note, don't be fooled that the CC originators ignored the issue of term length. They did create easy to use public domain declarations:

I think, perhaps, what you are saying is not that CC is the problem, but that the problem is that CC is not yet big/popular/strong enough to harness the works of contemporary writers (who are still around to reap the benefits of traditional copyright). While I love the idea of the CC, I can't help but understand why today's writers would prefer to stick with the traditional means that would require their works to reach a smaller audience but with some monetary gain. I don't know if it would be fair to pressure contemporary writers to enlist in the CC; it's a noble choice and I'm grateful that some artists make it, but I wouldn't expect everything to be available so freely.

It seems to me that Guangwei probably didn't print and staple his own textbook, but bought one from someone who was selling cheap knock-off copies as a business. So is the real issue that textbooks are too expensive? How will the move to e-books affect this, as the distorting influences of low-print-run costs, inefficient distribution and stock control disappear? And of course the knock-off Chinese publishers will also suffer as students download bootleg e-books for free instead!